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The Office of Special Counsel has taken legal action to have jurisdiction over appeals filed by federal airport screeners with the Transportation Security Administration over alleged retaliation for whistleblowing, the agency said Monday.

OSC filed a "friend of the court" legal brief May 6 asking the Merit Systems Review Board to give it jurisdiction over individual appeals filed by screeners on or after March 1, 2003, when TSA became part of the Homeland Security Department.

"Our agency believes that MSPB jurisdiction is critical to screeners' ability to report airport security concerns without fear of reprisal," Special Counsel Scott Bloch said in a statement. "When Congress created the Department of Homeland Security, they made it clear that whistleblower protection is an integral part of protecting homeland security. Providing full whistleblower protections to screeners will help ensure that Congress' goals in establishing DHS are realized."

Matt Shannon, legal counsel for MSPB, said he did not know when the board would make a decision on whether OSC can have jurisidiction.

OSC specifically asked for jurisdiction to review three of the oldest individual right of action appeals from TSA screeners pending before the board. MSPB's decision on whether OSC can have jurisdiction will set a precedent that could affect the approximately 45,000 federal screeners nationwide, who represent about one-fourth of the total DHS workforce.

The Office of Special Counsel determined in April that it has jurisdiction over TSA screener cases involving discrimination, whistleblower reprisal and retaliation for exercise of appeal rights.

OSC said it was moved to take legal action in response to initial decisions by MSPB administrative judges that the board lacks jurisdiction over screeners' appeals under the 2001 law that created TSA. Under that law, TSA was given broad authority to hire, discipline and terminate screeners without being subject to most federal employment laws.

The office argues, however, that the 2002 law that created DHS, rather than the TSA law, is the controlling legal authority for screeners' whistleblower rights. Under that law, all DHS employees, including screeners, are provided with full whistleblower protections, including the ability to file complaints with OSC and individual right of action appeals with the MSPB.

Presidential Prerogative

The president reserves the right to deny military officers promotions at any stage of the process, a federal appeals court ruled Wednesday.

The ruling closes a case in which Noel K. Dysart challenged President Clinton's decision to remove his name from a list of Navy officers in line for promotions to the grade of rear admiral, per the recommendation of the Navy Secretary. Dysart claimed that having his name on the list should have guaranteed him an automatic advancement.

At the Navy, a selection board recommends officers for promotions to rear admiral. The president then selects nominees from the recommended pool, and those nominees undergo Senate confirmation. Once confirmed, the Navy places officers on a list of candidates for promotions.

Under the United States Code, Title 10, Section 624(a)(2), the military must advance all officers on the list as slots open, and must do so in the order the names appear.

But the president must formally appoint the officers before any promotion is official. Typically presidents delegate the authority to appoint rear admirals to the Navy Secretary.

Dysart made it almost all the way through this process. President Clinton nominated him for a promotion in March 1996 and the Senate confirmed him that June. His name was then added to list of officers in line for promotions.

Before Dysart's scheduled promotion, the Navy Secretary requested a delay, arguing that a relationship Dysart began after separating from his wife might disqualify him for the advance. In June 1998, President Clinton followed the Navy Secretary's recommendation and removed Dysart's name from the promotions list.

Dysart later had to leave the Navy because he'd served as long as he could at his grade level. He filed a lawsuit at the Court of Federal Claims, arguing that by law, appointments proceed automatically after the Senate confirms a nominee and the nominee's name is placed on the Navy's waiting list for promotions.

But the claims court ruled that the Constitution grants presidents the authority to deny military officer appointments at any point in the process. In a May 26 decision, the Court of Appeals for the Federal Circuit concurred.

"The constitutional process allows the President complete discretion in choosing whether or not to appoint an officer," the federal appeals court ruled. "The statute does not and can not alter that process by providing for automatic appointment."

Rear Admiral (Lower Half) Noel K. Dysart v. United States, U.S. Court of Appeals for the Federal Circuit (03-5106), May 26, 2004

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